Monthly Archives: November 2011

In a recent appeal of an accidental death policy coverage action, the First Circuit rejected the argument that the district court erred in allowing an expert to testify that an injury was not “a major cause” of the insured’s death. Gay v. Stonebridge Life Ins. Co., — F.3d —, 2011 WL 5083220, C.A.1 (Mass.), October 26, 2011 (NO. 10-1559). Plaintiff argued that because the opinion exceeded the bounds of the expert’s report, the district court erred in allowing the testimony. The court of appeals found no error, noting that although the expert’s testimony used different words than his report, “it was a reasonable elaboration of the opinion disclosed in the report.” The court of appeals found that the district court was correct in concluding that, based on the expert report, the plaintiff reasonably could have anticipated and could not have been unfairly surprised by the expert’s testimony. Additionally, the court of appeals further pointed out, albeit in a footnote, that to the extent plaintiff did not fully apprehend the expert’s opinion, he could have deposed the expert prior to trial, but did not.